128 P. 590 | Mont. | 1912
delivered the opinion of the court.
The purpose of this application is to have this court, by the exercise of its supervisory power, vacate and set aside an order of the district court of Fergus county, made upon an application for habeas corpus, awarding to Mary Nipp the custody of her minor son, Freddie Nipp. Mary Nipp and Ludwig Nipp, the relator herein, were married at Bennington, Douglas county, Nebraska, on June 25, 1902. They lived together as husband and wife, near Omaha in that state, until April 8, 1911. There were born to them a son, Freddie, and a daughter, Emilie, the former being now of the age of nine years.- During the early part of the year 1911, Mary Nipp brought her action in the district court of Douglas county, Nebraska, to have the marriage dissolved. The relator, having been personally served with summons, appeared and made defense. The result was that on April 8, 1911, the court found in favor of the plaintiff and rendered its decree dissolving the marriage. It was therein directed that until further order, the father should have the custody of the son, and the mother that of the daughter. The custody was not to be exclusive in either case, however, each party being accorded the right to visit at all times the child awarded to the custody of the other, and each being enjoined from interposing “any obstacle or hindrance in the way of the other.” On May 15, 1911, the relator removed from Nebraska
The questions presented for decision arise upon a motion submitted by counsel for respondents, asking that the order to show cause be set aside and the proceedings dismissed, on the general ground that the facts stated in the petition do not warrant the relief demanded. We shall notice them as they are discussed in the brief of counsel for relator.
It is earnestly argued that when an infant is brought into
There is some conflict in the decisions upon the subject. In the case of In re Bort, 25 Kan. 308, 37 Am. Rep. 255, it was held, in a similar case, that while the decree was conclusive as between the parents, the best interest of the minor child is the paramount consideration. The court accordingly refused to give the decree of divorce the force of an estoppel or even to consider it as a fact or circumstance which ought to influence its discretion. On the other hand, in People ex rel. Allen v. Allen, 47 N. Y. Sup. Ct. 612, 40 Hun, 612, the court refused to follow the rule announced in this case, and held that a decree of a circuit court of Illinois, granting the mother a divorce and awarding to her the custody of her minor children, was conclusive upon the rights of the parents and binding upon the children for the time being, but that “as soon as the circumstances of the custodian changed or other circumstances arose which would make it for the best interests of the children that there should be a change, it would be the duty of the court in which the decree was originally made, or any other court having jurisdiction, to make such change.” The court awarded the custody of the children to the mother. The court of appeals (People ex rel. Allen v. Allen, 105 N. Y. 628, 11 N. E. 143) approved this holding, remarking that it “gave to the Illinois decree not the force ■of an estoppel, * * * but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised, without dictating or controlling it.” The result of this case is that, in the ■ absence, of allegation and proof of the circumstances
In the case of Wakefield v. Ives, 35 Iowa, 238, in a controversy over the custody of a child between the father and mother, who had been divorced by a decree of a court in Minnesota which awarded the custody of the minor to the mother, it was held that in the absence of a showing as to the circumstances under which the minor was brought into the state of Iowa, the decree of the Minnesota court should be accepted as conclusive until modified, reversed or set aside for cause shown to the jurisdiction which rendered it. This, in effect, is an approval of the rule announced by the New York court, for it is apparent that the Iowa court would have reached a different conclusion • if facts had been shown indicating a change in the character or condition of the custodian subsequent to the rendition of the original decree.
In Wilkinson v. Deming, 80 Ill. 342, 22 Am. Rep. 192, the question was whether the divorced wife to whom the custody of a minor child had been awarded could by will appoint a guardian, the father being still alive. The court held that the decree ipso facto took away all control of the father over the child until it should be restored to him by action of the proper court. The same conclusion is announced in the following cases: Stetson v. Stetson, 80 Me. 483, 15 Atl. 60; Hammond v. Hammond, 90 Ga. 527, 16 S. E. 265; Hanrdhan v. Sears, 72 N. H. 71, 54 Atl. 702; see, also, Church on Habeas Corpus, 2d ed., see. 82; 2 Nelson on Divorce and Separation, sec. 980.
This court recognized the principle of these decisions in State ex rel. Giroux v. Giroux, 19 Mont. 149, 47 Pac. 798, where the issue was whether the father, to whom had been awarded the custody of a minor child by a decree of a district court of the territory of Arizona, had a superior right to the mother. The father predicated his claim upon the decree alone. Under this condition this court held the decree binding, but at the close of the opinion said: “"We do not wish to be understood as holding that this decree of divorce awarding the custody of the child to
It is contended that even though the allegations were properly stricken from the return, the court should have disregarded the decree and disposed of the application as if it had not been
The relator contends that the petition is fatally defective, in
The motion to quash the order to show cause is sustained and the proceeding is dismissed.
Dismissed.